The Facts: Schumer v. Pickering

February 11, 2003

When Charles Pickering’s Presidential Nomination to the Fifth Circuit Court of Appeals was rejected by the Senate Judiciary Committee on a straight party-line vote, the keystone charge against him by Senator Charles Schumer was that the Mississippi federal district judge had resisted giving a white defendant in a cross-burning case a seven-and-a-half-year sentence as suggested by the federal sentencing guidelines. Pickering had insisted that the sentence was disproportionately heavy.

Charles Schumer accused Pickering of “glaring racial insensitivity,” and, at a press conference, said that Bush’s choice of Pickering showed that “Richard Nixon’s Southern strategy is alive and well in the White House.”

Senate Minority Leader Tom Daschle pledged, when Bush resubmitted the nomination this year, “We’re going to do everything we can to stop that nomination.” Both Schumer and Ted Kennedy assured us that, if need be, they would filibuster it on the Senate floor, no matter what legislation was being debated at the time. I assume they might pause for some water if the United States invaded Iraq.

If I were on the Senate Judiciary Committee, I would ask a number of fundamental constitutional questions of Pickering, or any nominee. In a time of terrorism, for example, would he so defer to President George W. Bush as to allow him—on his sole order—to suspend habeas corpus in the case of an American citizen designated “an enemy combatant”?

Also, does he define federalism as meaning that the individual states are immune from being sued by their employees for unconstitutional discrimination on the basis of disability, age, or gender—when Congress has already decided that such lawsuits are permitted despite the Tenth and Eleventh Amendments?

You didn’t see those questions in the many accounts of the brutal first Pickering hearing that The Washington Post, which has considerable objections to the Mississippi judge’s record, called “a degradation of the confirmation process.”

From then on, Pickering has been characterized by much of the media in the manner that The New York Times‘ antic hit woman, Maureen Dowd, describes him: “[Pickering has] a soft spot for cross burners.”

This is not a brief for Pickering’s confirmation. It’s about journalists’ laziness. Since the great majority of reporters declined to do any investigative reporting of their own on the cross-burning sentencing, and instead parroted the charges by Schumer and his colleagues on the committee, these are the facts of the 1994 case, United States v. Swan. The clearest command to the press—whatever their preconceptions of a story—is to get it right. See what you think of their performance, let alone Schumer’s, on this story.

Three white men burned a cross in front of the home of a white man and his black wife in a rural Mississippi county. The prosecutors in the U.S. Justice Department’s Civil Rights Division made a plea bargain, with no jail time, for two of the defendants. One was the ringleader, a 17-year-old (whose name was not disclosed because he’s a juvenile); he pleaded guilty. Also given a deal because of his very low IQ was 25-year-old Mickey Herbert Thomas; he pleaded guilty as well.

The third defendant, 20-year-old Daniel Swan, owned the pickup truck used in the crime. He refused to plead guilty, so the federal prosecutors insisted that he be imprisoned for seven and a half years under the federal hate-crimes statute.

The 17-year-old ringleader had previously fired a gun into the home of the interracial couple. To put it euphemistically, he had a strong animus toward blacks. After he and Thomas took the plea bargain, Daniel Swan rejected the deal, pleading not guilty.

There is no question Swan participated in the cross burning. But as Byron York wrote in a documented two-part story, “The Cross Burning Case: What Really Happened” (nationalreview.com), “The law requires that the government prove that the accused acted out of [sufficient] racial animus [to justify] the heavy sentence.”

Swan’s defense, York continued, “consisted mainly of the contention that he was drunk on the night of the cross burning, [maintaining] that he simply did not have the racial animus necessary to be guilty of a hate crime under federal law.” Swan had no criminal record, and no indication of prior violent hostility toward blacks.

Therefore, notes York, “When it came time to sentence Swan, Pickering questioned whether it made sense that the most guilty defendant got off with a misdemeanor and no jail time, while a less guilty defendant would be sentenced to seven and a half years in prison.”

Pickering did go to extraordinary lengths, including a number of conversations with the Justice Department, to try to persuade the prosecutors to recommend a less stiff sentence for Swan. Byron York reports that one of the federal prosecutors, Jack Lacy, “wrote [in a letter] that he ‘personally agreed with the judge that the sentence is draconian,’ but said he also reminded Pickering that Swan could have pleaded guilty but instead, ‘the defendant repeatedly chucked our offers in our teeth.’ ”

It is not uncommon for prosecutors to retaliate against defendants who ungratefully turn down a plea bargain and insist on going to trial—costing the government money and the prosecutors extra time.

Finally, writes York, “Pickering got word from the Civil Rights Division prosecutors, who said they had decided to drop the demand that Swan be given the five-year-minimum portion of the recommended sentence. Pickering then sentenced Swan to 27 months in jail.”

When he sentenced Swan, Pickering told him that he had committed “a despicable act,” and added that this is “an area that we’ve got to stamp out. . . . We’ve got to live among each other.”

Ted Kennedy has charged that Pickering, while coming down hard on black defendants, showed selective leniency against this white defendant. I have copies of letters from four lawyers in Hattiesburg, Mississippi, who represented separate black defendants before Pickering. He made significant downward departures from federal sentencing guidelines in each case.

In one, a first-time offender, on drugs since he was eight, was given a sentence light enough to allow him to get rehabilitation services in prison. “This may have been,” said his lawyer, “a positive, life-changing experience” for his client. But Schumer and Maureen Dowd keep on jiving.

"More than any other contemporary African-American athlete, his ability to thrive in the pressure cooker of corporate America, while never making any embarrass­ing 'I’m not black, I’m universal' comments or selling his soul rather than just his visage, makes him a role model"

“Though his work for human rights is unassailable, the books grow worse and worse, the tales of his derring-do more and more farfetched. Finally, without at all forgiving him his lies, one feels sorry for Kosinski.”